Section 6. Other Considerations

This section looks at other considerations that those undertaking work around the coast should be aware of prior to commencement of submitting any applications for consent. Being well informed on all the different aspects of your site and the issues that need to be considered, can greatly assist you in preparing an application that will have the minimum objections and therefore likely to progress quickly and save time and money.

Land and Seabed Ownership

Development or the undertaking of a licensed activity will almost always need the consent of the land owner. On land you can use the Land Registry to search for ownership down to the foreshore. Landowners include the Crown Estate, harbour authorities, local authorities, industry and private individuals. The Crown Estate manages around half of the foreshore around the UK coastline, although a good deal of this is leased to third parties such as local authorities and Natural England. The remainder is owned or managed by bodies such as the Duchies of Lancaster and Cornwall, local authorities, port authorities, statutory bodies and government departments. The Crown Estate's Managing Agent for the Solent region is Chesterton Humberts based in Southampton, and they are the first point of call for Crown Estate queries in the Solent.

The seabed to 12 nautical miles is largely owned by the Crown and managed on its behalf by the Crown Estate Commissioners. Beyond the 12 nautical mile limit the seabed is ownerless but various government bodies have sovereign rights over marine resources to the edge of the continental shelf and the 200 nautical mile limit (the exclusive economic zone). The Department for Energy and Climate Change have responsibility for oil and gas, and the Crown Estate for offshore wind.

What happens to the boundaries of the foreshore when the sea advances or retreats?

If the process of change is natural, and happens imperceptibly from day to day, then ownership changes accordingly. Therefore, if land ceases to be tidal (e.g. foreshore or riverbed), it becomes the property of the adjacent landowner. Conversely if land erodes and naturally converts to tidal, then it becomes the property of the tidal landowner. Often this can be the Crown.

If the change is sudden and immediately visible, e.g. the breaching of flood defences in a storm, then the ownership remains as it was unless alternative agreements are made. The same is the case where changes occur as a result of human action, e.g. reclamation or digging out basins.

Byelaws/General Directions

Byelaws are laws of local or limited application made by local councils or other bodies, using powers granted by an Act of Parliament. They can also be made by private companies or charities that exercise public or semi-public functions such as water companies, harbour authorities or the National Trust. They create criminal offences that can be prosecuted in Magistrates' Courts. Byelaws have to be within the scope of the enabling legislation. They are subsidiary to national legislation and cannot be in conflict with it. They must also be clear, reasonable and proportionate to the problem they are seeking to resolve.

Key organisations that make coastal and marine byelaws are:

The Marine Management Organisation can make marine conservation byelaws in the inshore area (0 to 12 miles) of English waters in Marine Protected Areas.

The Inshore Fisheries and Conservation Authorities are responsible for producing byelaws within their districts which includes such part of the English inshore region lying six nautical miles from baselines.

Natural England (NE) has byelaw making powers in intertidal SSSI and National Nature Reserves (NNR).

The Environment Agency can make fisheries byelaws.

General Directions are the rules used for the day-to-day running of a harbour and often supersede Harbour Byelaws; they are put in place by harbour authorities to ensure the safe and efficient running of their harbour.

It is worthwhile being informed of any byelaws or General Directions that are in place around the location of your development/works. Ask your local planning or harbour authority to advise of any that are in force.

Statutory Consultees

Statutory consultees are organisations and bodies, defined by statute, who must be consulted on relevant development applications. Their views have to be taken into account by the consenting authority when considering whether or not to grant permission. Key organisations include the Environment Agency, Natural England, Historic England, Ministry of Defence and the Crown Estate. It remains for the consenting authority to decide which parties with a particular local interest or involvement should also be consulted on development applications or porposals.

Why is it important to me as a developer to know about statutory consultees?

The consenting authority, such as the MMO for a Marine Licence, has a statutory duty to take on board the comments of statutory consultees like Natural England when deciding the outcome of an application. If statutory consultees have objections this can delay or prevent the issuing of consent. Therefore, it is well worth discussing your plans with statutory consultees prior to submission so that any of their concerns can be discussed and built into the application before it is submitted. This can save time and money in the long run.

If you need to know who the statutory consultees will be for your development, ask either the local planning authority (for shoreside development) or the MMO (for waterside development).

Non-statutory consultees are organisations and bodies, identified in national planning policy, who should be consulted on relevant applications. They include organisations such as Emergency Services and Multi-Agency Emergency Planning, Navigation Authorities and Water and Sewerage Undertakers.

Public Consultation

Public consultation is an important part of any work or development needing consent and will always be undertaken by the consenting authority. The consenting authority will consult with both statutory consultees and the local community before making its decision. Applicants can assist this process by speaking to their neighbours and other interested parties and groups before submitting an application. It is useful to have good documentation and maps to hand on your proposal that show clearly what you intend to do. Having the support of the local community can save time and money in the long run by ironing out objections before formal consultation takes place as part of the consenting process.

When an application is formally submitted to the MMO for a Marine Licence it will allocate it a case officer. This case officer will then send the case out to public consultation. For planning applications the council will post notices near the building site and/or write letters to those living near the site to ask people if they agree with the plans. Planning permission cannot be given without public consultation taking place. Your local planning authority or MMO office will be able to give you more information on who will be consulted as part of the consenting process and how they notify interested parties.

Harbour Guides

Local harbour guides are a good source of information and will contain details of byelaws, zoning or any other local management schemes in place. They may also have contact details of parties that developers may wish to engage with as part of the public consultation procedure, such as other local marine businesses. Many can now be downloaded from the Harbour Authorities' websites or hard copies will be available in Harbour Offices.

Rights of Way and England's Coast Path

Rights of way are specific routes that the public have the right to walk along. These routes may be roads, paths or tracks, and can run through towns, remote countryside or private property. They are open to everyone at any time and are known as public rights of way or, simply, rights of way. If you are planning a development it is important to ensure that it will not block a public right of way or permission may be refused. Your local planning authority will be able to advise on the rights of way in the vicinity of your development. Where works adjacent to a right of way are vital for construction or maintenance, for example at an industrial site, the highway authority can grant an order for temporary closure on safety grounds.

Local authorities (national park authorities, county councils, some district councils, metropolitan boroughs or unitary authorities) must record the legal existence and location of rights of way on the definitive map, and ensure that they are open for public use. The responsibility for recording and maintaining rights of way is shared between local authorities, landowners and occupiers.

The Marine and Coastal Access Act, 2009 (MCCA) gave people the right of access around all of England's open coast, including, where appropriate, spreading room along the way where they can rest, relax or admire the view. Natural England has the duty to develop this access via a new England Coast Path. Future development of land is not restricted under the MCAA legislation; the new rights are about access, not development control. The Act imposes no obligation on Natural England to continue the Path around an estuary; however, it does have the power to do so. When going through the alignment process on a stretch of coast, Natural England will consider whether to use this power on any estuary that it contains. The principle on the open coast is that the Path should be as continuous as possible. Detours can be provided around obstructions such as big industrial sites or secure ports.

Flood Risks/Coastal Change

Adapting to coastal change is seen as an ever increasingly important issue for all of us and this includes local businesses. When you apply for planning permission the local planning authority will consult with the Environment Agency who will advise on the potential flood risk of any development. Permission may be refused if the development is considered to be a high flood risk. Where a development is proposed within an area shown to be located within a flood risk zone, a Flood Risk Assessment (FRA) will need to be submitted with the planning application.

It is good practice to think about how your development could adapt to coastal change in the future. For example, how would it cope with an increase in winter storms or higher tidal surges? There may be opportunities to build in adaptability at the design stage that will help to minimise future maintenance or damage. As marine plans are implemented, they will also consider the implications of coastal change when preparing the policies that will guide future coastal development. The National Planning Policy Framework states that new development should be planned to avoid increased vulnerability to impacts arising from climate change, and in vulnerable areas care should be taken to ensure that risks can be managed through suitable adaptation measures, including through the planning of green infrastructure.

The Flood and Water Management Act, 2010 includes provision for a National Flood and Coastal Erosion Risk Management Strategy for England; it provides a national framework for communities to develop local partnerships and solutions to the flood and coastal erosion risks they face and underpins the partnership approach to funding flood and coastal resilience projects.

Defending the Coast

A Shoreline Management Plan (SMP) is a large-scale assessment of the risks associated with natural coastal processes and helps reduce these risks to people and the developed, historic and natural environments. SMPs include an action plan that prioritises what work is needed to manage coastal processes into the future, and where it will happen. This in turn forms the basis for deciding and putting in place specific flood and erosion risk management schemes, coastal erosion monitoring and further research on how best to adapt to coastal change. For each section of the coast the SMP will show four options, whether the policy is to 'hold the line', 'managed realignment', 'no active intervention' or 'adaptive management'.

Knowing what SMP policy is in place at you development location will show you how that section of coast is to be managed in the future. This is very important as, for example, applying for a new development on an eroding coastline with a 'no active intervention' policy is highly unlikely to gain planning consent. SMPs are not legally enforceable but are used by planners and development control officers to assist with decision making for proposed developments.

Ecological Enhancement

An ecological or biodiversity enhancement is an action that improves biodiversity and ecological habitat in the local environment. Enhancements should increase opportunities for local biodiversity and go beyond normal business practice or predetermined planning and construction conditions. There is a growing awareness of the need to 'green the grey', particularly in the construction of new coastal defences. Pilot projects have been underway over the last few years and people are increasing looking to adopt this principle in their designs. The Environment Agency published an 'Ecological Ehancment Process Guide' in 2011 to help facilitate this work. The Solent Forum have prepared a webpage on 'Ecological Enhancement' that links to this Guide and other resources.

Inshore Fisheries and Conservation Authorities (IFCAS)

There are 10 IFCAs around the English coastline and they are responsible for sustainably managing sea fisheries and conservation within 6 nautical miles from shore. They have the power to make byelaws to protect resources and the environment in their area as well as also enforcing national and European fisheries legislation. IFCAs are either committees or joint committees of the local authorities that fall within an IFC district. The Marine Management Organisation, Environment Agency and Natural England each have a statutory seat on the IFCA. The applicable IFCAs for the Solent are the Southern Inshore Fisheries & Conservation Authority and the Sussex Inshore Fisheries & Conservation Authority.

The MMO and the Environment Agency may also make fisheries byelaws in England within the 6nm limit to protect the marine environment from fishing activities or to protect migratory fish.

Control of Major Accident Hazard Regulations (COMAH designated sites)

The purpose of the Control of Major Accident Hazards (COMAH) Regulations is to ensure that businesses take all necessary measures to prevent major accidents involving dangerous substances and to limit the consequences to people and the environment of any major accidents which do occur. The COMAH Regulations are enforced by a body called the COMAH Competent Authority; it consists of the Health and Safety Executive (HSE) and the Environment Agency (EA). The Regulations place duties on the COMAH Competent Authority to inspect activities subject to COMAH and prohibit the operation of an establishment if there is evidence that measures taken for prevention and mitigation of major accidents are seriously deficient.

The Health and Safety Executive place a consultation zone around a hazardous installation and for any planning applications for land within this consultation zone, the local planning authority (LPA) are obliged to consult the HSE before making the planning decision. The zone can vary depending upon the nature and quantity of substances stored. The HSE will advise the LPA whether the proposed development is appropriate.

Further Information

SOLFIRE

SOLFIRE is a contingency plan developed to deal with any Marine Emergency occurring within the Ports of Portsmouth or Southampton, Southampton Water, Spithead and The Solent. Provision has been made for Marine Emergencies occurring outside the SOLFIRE area of responsibility and under HM Coastguard co-ordination, to gain access to SOLFIRE resources. This plan has been produced jointly by the Harbour Master, Southampton and the Queen's Harbour Master, Portsmouth in consultation and agreement with the Emergency Services and Local Authorities.